Akhil Amar Dismantles The Flawed Dissents in WWH v. Jackson

After Whole Woman’s Health, v. JacksonI have written several blog posts critiquing the Chief Justice Roberts’ and Justice Sotomayor’s dissents. In my first post, I explained how these jurists accepted judicial supremacy and were conflated. Marbury v. Madison  Cooper v. Aaron. Zweiten, Justice Sotomayor altered the constitution history that led to Civil War. Lincoln was opposed Dred ScottBecause he disbelieved in judicial supremacy. Ed Whelan made similar observations in posts titled, “Sotomayor’s ‘Analogous Sentiments'” and “John Roberts vs. John Roberts on Marbury and Judicial Supremacy.”

Yesterday Ed was interviewed by Akhil Amar. Amarica Constitution. You are encouraged to listen to the whole session. Otter was used to transcribe it. Below are some excerpts (lightly edited).

Amar stated that first WWH v. JacksonThe case did not constitute an assault on the court. The case was much more narrow. Roberts, Sotomayor and others were mentioned.

With all due respect, what was really at stake isn’t. Justice Sotomayor, or Chief Justice RobertsAny attack on the basic capability, right or duty of court in proper case to protect individual rights with opinions that clarify the court’s understanding of those rights. It wasn’t an issue at all today. However, some rhetoric in Justice Sotomayor and, frankly, the Chief might indicate that. But that is not really what I believe to be the issue.

Amar then explains to Justice Sotomayor how Justice Sotomayor, Chief Justice misunderstood Marbury.

What does Marbury V. Madison actually mean? Today, the United States Supreme Court invoked Marbury. In every case, they don’t actually refer to Marbury v. Madison. They have heightened the stakes by meaning John Roberts and Sonia SotomayorThis is how I present Marbury vs Madison. It’s not just ConLaw. FedCourts 101 is also what I taught at law school. So I’m going to try to take it through with just a bit of care. Marbury doesn’t say this, quote:Supreme Court has the final say in the Constitution’s interpretation” unquote. This doesn’t mean anything. It doesn’t say that. Never with a page cit. Supreme Court. The ultimate interpreter and administrator of the Constitution. Marbury did not actually state that. Actually, it didn’t mention much about the Supreme Court. In fact, it was about the courts in general, which is the judicial unit that includes all federal courts. Ed also mentioned state courts.

Amar is 100 percent correct. The mythical story of supremacy in judicial matters comes from Cooper v. AaronNot from, but from Marbury v. Madison. In my article I discuss this history. The Unresistible Myth about Cooper v. Aaron

Amar also acknowledges S.B. Amar acknowledges that S.B. RoeAnd Casey.

This was one of the key factors that set Justice Sotomayor and Chief Justice out of sync. [Nose out of joint refers to someone who is angry or annoyed]. Justice Sotomayor joined Justices Breyer, Kagan in expressing their opinion. Together, that made up four. The Texas, fetal beat law was pretty clearly inconsistent with Roe and Casey Supreme Court opinions, both from 1973 and 1992. Yes, they are.

Amar, however, chides those who disagree with Amar for confusing Supreme Court decisions and statutes. These are the Supreme Law of the Land. These are not the Supreme Law of the Land. Unfortunately, the dissidents bought in to the myth of supremacy by the judiciary.

However, a statute which is inconsistent with a Supreme Court decision or opinion can be invalidated. Even an opinion that purports to interpret the Constitution. It isn’t the sameThere is no such thing as a statute inconsistent with the Constitution. Ed does not believe in judicial supremacy. So do I, if that is what judicial superstacy means to me, the one understanding she had was Too quick confusion between the Constitution’s actual meaning and Supreme Court rulings on how to interpret it.

Amar is fourth Dred ScottLincoln. Justice Sotomayor has distorted the Civil War history.

In our final episode of the week, I stated, “Gee, Dred Scott said so and so” and it actually said that blacks could not be citizens. The opinion is clear. Abraham Lincoln was actually Lincoln’s Attorney General. He issued him a passport. It is a federal passport. This could be only issued to blacks who are citizens. Lincoln’s Justice Department, Lincoln’s administration and his attorney general Bates argued that because blacks could become citizens, the Dred Scott error was wrong. Bates believed that his obligation was to the Constitution and not the judicial opinions.

Akhil has it exactly right. Justice Sotomayor used John C. Calhoun’s analogy and nullification to bring the matter backwards.

Fifth, Amar compared what Lincoln’s government did after the fact to Dred ScottTexas’s response to the aftermath of 9/11. Roe  CaseyTake actions that do not violate any court order but still allow precedents to be established.

You can imagine how the lawsuit would have turned out. Also, the Supreme Court would then have the chance to affirm Dred Scott’s decision or reverse it. That’s exactly what Texas does with the statute.The law will need to be reviewed by the courts once it is implemented. There will be a judicial review as soon, in a moment, regardless of any other recourses or the ability to go to court. There will be a court proceeding and that case can easily reach the U.S. Supreme Court. The Supreme Court can then decide whether to reaffirm Roe v. Wade or Casey.

My post was:

Indeed, S.B. Indeed, S.B.

Amar, I believe, would be in agreement.

A perverse aspect of Justice Sotomayor’s 1619 Project is the fact that an advocate has to stand with Taney. Dred ScottAccept Lincoln, or reject him. Critical racial theory today is based upon the belief that African Americans were intrinsically unequal in terms of equality under the Constitution. Any attempt to argue the opposite must be rejected. Noah Feldman, who is opposed to Lincoln, must join Jefferson Davis. If Lincoln is right and Taney wrong then Justice Sotomayor and the 1619 Project are both wrong. Lincoln is my friend. It’s an important line that Amar has, which I appreciate.

Recent articles have been written on judicial courage. Amar shows academic courage despite all of the chaos at Yale Law School. Amar spoke out against the Federalist Society Dean’s policies at the convention and invited Ed Whelan to his podcast for a discussion about abortion. Bravo.